2 Andrea Robinson is a partner of Wilmer Cutler Pickering Hale and Dorr LLP where she is cochair of its class action committee and a vice-chair of its securities department. Ms. Robinson s practice focuses on securities, financial services, and other commercial litigation and disputes, including SEC, FINRA, and other regulatory enforcement matters. Her work has included the successful defense of numerous sales practice cases involving life insurance and annuity products (brought on behalf of both individuals and alleged classes), and the defense of wide-ranging regulatory matters involving state departments of insurance, attorneys general, the Securities and Exchange Commission, and FINRA. Ms. Robinson was recognized as a leading securities litigator in the 2007 and 2008 editions of Chambers USA: America s Leading Lawyers for Business. This outline reflects the invaluable contributions of Adam Hornstine, Wilmer Cutler Pickering Hale and Dorr LLP.

5 Annuity Class Action Litigation Trends and Strategies for Effective Class Action Defense I. The Big Picture: Thinking beyond the Class Action Class action litigation does not occur in a vacuum. Litigants must consider the impact that litigation may have on other aspects of their business dealings and vice versa. A. Regulatory Considerations Companies being investigated by a regulator must consider whether that investigation could spawn or affect private litigation. For example, public investigations by attorneys general can provide useful information for the plaintiffs contemplating initiating or already prosecuting a class action suit. In addition, public regulatory scrutiny can color the landscape against which the merits of an action are evaluated. 1. Attorneys general a. State attorneys general have been vigorous in investigating potentially improper sales of annuities, including sales of annuities to senior citizens. Examples include examinations of: wealth management seminars that are well-disguised sales pitches high-pressure sales pitches annuities that companies claim offer substantial bonuses other disclosure matters such as the failure to disclose specific attributes of annuities, including surrender charges, surrender periods, and tax penalties for early withdrawal the suitability of annuities for seniors or other classes of purchasers perceived to be vulnerable b. Regulatory investigations may raise public relations issues and be very costly. See, for example: i. Minnesota attorney general suits against various insurers alleging that each company sold unsuitable long term deferred annuities to senior citizens and misrepresented or failed to disclose terms of these annuities (see generally On February 7, 2008, American Equity Investment Life Insurance Company settled a Minnesota suit alleging the improper sale to senior citizens of fixed or fixed indexed deferred annuities with a surrender charge period of one year or more. As part of this settlement, the company paid $250,000 to the state. The company also agreed (1) to collect and maintain certain customer information before selling an annuity that would assist the company in rendering a suitability analysis, (2) to conduct an elevated suitability review under specified circumstances for future sales, and (3) to establish a claims review process for determination of claims for restitution by complaining annuity holders and annuity holders 65 years old when they applied for an annuity they purchased since On October 22, 2008, AmerUs Life Insurance Company (now Aviva) settled allegations that the company sold unsuitable long term deferred annuities to senior Annuity Class Action Litigation Trends and Strategies for Effective Class... v Robinson v 187

6 citizens and misrepresented or failed to disclose terms of these annuities. The settlement required the company to request and obtain from consumers additional information that is necessary to make a suitability determination for sales in the future. The company also paid the state $375,000. Lastly, the settlement permitted review of claims by previously complaining policyholders and seniors who purchased (after January 1, 2001) a fixed or fixed indexed annuity with a surrender charge period of one year or more. According to the attorney general s office, there were 4500 policies with an estimated aggregate value of $250 million eligible for this review process. On October 8, 2007, Allianz Life Insurance Company settled a lawsuit brought by the state for allegedly selling deferred annuities to Minnesota senior citizens without first ascertaining whether those annuities were suitable investments for the senior citizens. The lawsuit claimed that Allianz marketed and sold fixed and indexed annuities to seniors that restricted their access to assets in the annuity for as long as 15 years and in some cases misrepresented the terms of the annuity. As part of the settlement, Allianz agreed to pay a $500,000 fee to the state and to give complaining annuity holders and seniors holding fixed and fixed indexed annuities with a surrender charge period of one year or more who had purchased since January 1, 2001, the opportunity to submit a claim for a full refund without penalties. Also, Allianz agreed to request and obtain from consumers additional information that is necessary to determine whether a deferred annuity is suitable for the particular consumer for all future sales. On December 15, 2008, Midland National Life Insurance Company and its affiliate North American Company for Life and Health Insurance settled a lawsuit alleging that the companies sold unsuitable fixed or fixed indexed annuities to senior citizens and misrepresented or failed to disclose adequately terms of these annuities. In particular, the state s complaint asserted that the companies sold unsuitable equity indexed deferred annuities to seniors by misrepresenting and/or failing to disclose the terms of the annuities. The suit further asserted that these deferred annuities were unsuitable for some seniors because they could lock up an investor s funds for more than ten years, and included early surrender penalties of up to 25 percent. As part of the settlement, Midland agreed to pay $225,000 and establish a claims review process for determining claims for resubmission by claimants who had previously complained about their purchase or who were 65 years or older on the date they applied for annuity issued after January 1, In addition, the companies agreed to obtain and review certain information about customers before selling these products in the future. ii. Massachusetts settlements with: Investors Capital Corporation (settlement by Office of Secretary of the Commonwealth Security Division, December 19, 2006). ICC was fined $500,000 for allegedly failing to monitor its agents outside business accounts and for allowing its agents to hold themselves out as investment advisor representatives allegedly resulting in the sale of unsuitable indexed annuities to elderly Massachusetts residents. Also, under 188 v Life, Health, Disability and ERISA Claims Seminar v April 2009

7 the settlement, individuals 75 and older were permitted to withdraw money from these annuities without penalty (and with a minimum three percent interest). Bank of America. Pursuant to a July 13, 2005, settlement of a matter alleging that Banc of America Investment Services, Inc. had sold ill-suited variable annuities in 2003 and 2004 to seniors and failed to supervise their sales representatives, Bank of America agreed to offer those customers 78 and older who purchased these variable annuities the opportunity to receive the current value of the annuity without paying surrender charges. Bank of America further agreed (1) to provide investors who were between 75 and 77 at the time of purchase an expedited review of any suitability concerns applicable to their investment and (2) to implement certain changes in practice, including implementing automated suitability review, observing written suitability guidelines, and monitoring and training all sales representatives. Citizens Bank. Under a July 22, 2005 agreement with Massachusetts, Citizens settled a complaint that alleged that Citizens (and its agents) had improperly pushed the sale of improper variable annuities to elderly bank customers and failed to maintain internal s concerning these allegedly improper sales. Under the settlement, Citizens agreed to pay a $3 million civil fine and to offer all Massachusetts customers who were 75 or older when they bought a variable annuity the opportunity to recover their money without penalty. Citizens also consented to the implementation of certain training guidelines for its sales representatives. iii. California attorney general settlement On December 20, 2007, California s attorney general announced a settlement with American Investors Life Insurance Company, Family First Insurance Services, and Family First advanced Estate Planning stemming from sales of fee-laden annuities to seniors in California. The settlement required American Investors Life Insurance and the Family First companies to pay $1 million in civil penalties and to distribute $5.5 million to consumers who purchased the annuities through Family First and incurred surrender penalties. The settlement also required the companies to pay $700,000 to reimburse the Office of the Attorney General and Department of Insurance for costs incurred during the investigation of the case. In addition, the settlement required American Investors Life Insurance to let consumers redeem their annuities without surrender charges. Finally, the judgment forced Family First Insurance Services and Family First Advanced Estate Planning to permanently cease all business operations and barred American Investors Life Insurance Services from soliciting senior citizens without revealing that the consumer would be propositioned by an insurance agent. 2. State insurance regulators a. A number of states impose on insurers and/or insurance producers a duty to ensure that annuities are suitable for the consumer based on a review of the facts disclosed by the consumer as to her investments and other insurance products and as to her financial situation and needs. See, e.g., Ala. Admin. Code r ; 3 Colo. Code Regs ; 211 Mass. Code Regs ; Ill. Admin. Code tit. 50, Annuity Class Action Litigation Trends and Strategies for Effective Class... v Robinson v 189

8 i. For instance, in Florida, insurance agents (or an insurer if no insurance agent is involved), shall have reasonable grounds for believing that the recommendation [to purchase an annuity] is suitable for the senior consumer on the basis of the facts disclosed by the senior consumer as to his or her investments and other insurance products and as to his or her financial situation and needs. In addition, insurance agent[s], or an insurer if no insurance agent is involved, shall make reasonable efforts to obtain information concerning the senior consumer s financial status, tax status, and investment objectives and such other information used or considered to be reasonable by the insurance agent, or the insurer if no agent is involved, in making the recommendation. Fla. Stat This law does not create a private cause of action; instead, its provisions like those of many other state laws are enforceable by the state, usually through the state s insurance commissioner. b. In addition, the National Association of Insurance Commissioners has adopted a regulation governing Suitability in Annuity Transactions. This model regulation (adopted in 2006 and updated in 2007) requires: i. Insurance producers, or the insurer where no producer is involved, to have reasonable grounds for believing that the recommendation [regarding the sale of an annuity] is suitable for the consumer on the basis of the facts disclosed by the consumer as to his or her investments and other insurance products and as to his or her financial situation and needs. NAIC 6(A). ii. Insurance producers or the insurer (where no producer is involved) to make reasonable efforts to obtain information concerning: the consumer s financial status, the consumer s tax status, the consumer s investment objectives, and such other information considered to be reasonable. NAIC 6(B). iii. Insurers and insurance producers establish and maintain a system designed to effect these regulations, including maintaining written procedures in accordance with these regulations and conducting periodic reviews of records that are designed to assist in detecting and preventing violations of these regulations. NAIC 6(D). 3. FINRA a. FINRA (formerly the NYSE and NASD) is the largest independent regulator for all securities firms doing business in the United States. FINRA s primary role is to protect investors by maintaining the fairness of the capital markets in the United States. b. FINRA s rules of conduct govern the sale of annuities that are securities and, to varying degrees depending on the product, the conduct of broker-dealers that sell annuity products. c. General suitability requirements: i. Conduct Rule 2010 (Standards of Commercial Honor and Principles of Trade) (formerly Conduct Rule 2110): members must observe high standards of commercial honor and just and equitable principles of trade. This rule does not specifically govern sales of annuities, but it does require that members follow FINRA s suitability guidelines and to act in a professional manner in selling annuities. ii. Conduct Rule 2310 (Suitability of Recommendations): governs customer-specific suitability requirements in the context of securities recommendations. All members may 190 v Life, Health, Disability and ERISA Claims Seminar v April 2009

9 recommend the sale of a variable annuity only if it is tailored to the customer s specific financial needs and investment objectives. d. Special guidance on variable annuities: i. Notice to Members (The NASD Reminds Members of Their Responsibilities Regarding the Sales of Variable Annuities). This provides some specific guidelines regarding suitability requirements for variable annuity sales. Sellers must make reasonable efforts to obtain the following information about customers before selling these products: age, number of dependents, marital status, occupation, liquid worth, other investments, annual income, and investment objectives. ii. Joint SEC/NASD Report on Examination Findings Regarding Broker-Dealer Sales of Variable Insurance Products (2004). This joint report concerns the sales of variable annuities and life insurance products. Report highlights strong and weak practices with respect to suitability and supervision rules. Sound practices require sellers to confirm suitability through use of a checklist, to provide comprehensive written policies that guide sales force regarding suitability requirements, to review communications between sales representatives and customers, to review practices of investment advisors who sell annuity products, and to establish automated procedures for comparing sale recommendations with a customer s electronic suitability profile. iii. Conduct Rule 2821 (Members Responsibilities Regarding Deferred Variable Annuities) (effective May 5, 2008). This prohibits recommending to any customer the purchase or exchange of a deferred variable annuity unless such member or person associated with a member has a reasonable basis to believe (1) the transaction is suitable, (2) the customer has been informed, in general terms, of various features of deferred variable annuities, (3) the customer would benefit from certain features of deferred variable annuities, and (4) the particular deferred variable annuity as a whole, the underlying subaccounts to which funds are allocated at the time of the purchase or exchange of the deferred variable annuity, and riders and similar product enhancements, if any, are suitable. The rule further requires that prior to recommending the purchase or exchange of a deferred variable annuity, a member or person associated with a member shall make reasonable efforts to obtain, at a minimum, information concerning the customer s age, annual income, financial situation and needs, investment experience, investment objectives, intended use of the deferred variable annuity, investment time horizon, existing assets (including investment and life insurance holdings), liquidity needs, liquid net worth, risk tolerance, tax status, and such other information used or considered to be reasonable by the member or person associated with the member in making recommendations to customers. e. Guidelines on sales to senior citizens: i. FINRA Regulatory Notice (Reminds Firms of Their Obligations Relating to Senior Investors and Highlights Industry Practices to Serve These Customers). This notice promulgates compliance guidelines for sales of annuities to seniors. Sellers should follow appropriate procedures taking into account age and life stage of annuity purchasers. The notice further indicates that FINRA will closely examine annuity products that are poorly designed for senior citizens, including products that contain Annuity Class Action Litigation Trends and Strategies for Effective Class... v Robinson v 191

10 4. SEC withdrawal penalties and liquidity limitations. In addition, this notice emphasizes that firms must be sure to avoid high pressure sales seminars aimed at senior investors. ii. FINRA RCA Spring 2002 (Reminder Suitability of Variable Annuity Sales). This note reminds members of their suitability obligations under Conduct Rule 2310 when recommending variable annuities. Further, this notice cautions that members cannot determine whether a recommendation is suitable for a particular customer unless they are knowledgeable about the investment product at issue, bearing in mind that members should also weigh the impact that a proposed transaction might have on an investor s financial status before recommending the transaction. iii. FINRA Investor Alert (May 27, 2003) Regarding Variable Annuities. This reminds investors to be aware of restrictive features of variable annuities, understanding that substantial taxes and charges may apply if they withdraw their money early, and to guard against fear-inducing sales tactics. iv. FINRA Notice to Members 05-50, August 2005 (Member Responsibilities for Supervising Sales of Unregistered Equity Indexed Annuities). Firms must adopt special procedures under Rule 3030 with respect to equity indexed annuities. In particular, firms must require that their associated persons promptly notify the firm in writing when they intend to sell unregistered equity indexed annuities. Moreover, all recommendations to liquidate or surrender a registered security (such as a mutual fund, variable annuity, or variable life contract) must be suitable, including where such liquidations or surrender are for the purpose of funding the purchase of an unregistered equity indexed annuity. v. FINRA Regulatory and Compliance Alert, Spring 2002, NASD Regulation Cautions Firms for Deficient Variable Annuity Communications. FINRA reminds members of their suitability obligations under Conduct Rule 2310 when recommending variable annuities. Members must keep in mind that the suitability rules apply to any recommendation to sell a variable annuity regardless of the use of the process, including situations where the member recommends using the proceeds to purchase an unregistered product such as an equity indexed annuity. Any recommendation to sell the variable annuity must be based on the financial situation, objectives, and needs of the particular investor. a. Variable annuities are considered securities and are regulated by the SEC. b. Rule 151(a), 17 C.F.R A, would regulate equity indexed annuities as securities under the federal securities laws. This rule would greatly expand the SEC s role in overseeing annuity transactions and the regulatory obligations of issuers. This rule became final on December 17, 2008, but the rule will not go into full effect until January 12, B. Other Litigation 1. Attorneys defending class action suits must be aware of other ongoing litigation and how it may affect the defense of the class action. 2. Statements made in these cases can be used against company in subsequent proceedings. 192 v Life, Health, Disability and ERISA Claims Seminar v April 2009

11 3. Results of these class actions can be binding upon a company in subsequent proceedings. C. Internal Compliance Processes 1. Companies selling annuities must develop a strategy for addressing proactively the government s heightened interest in pursuing costly investigations into the sale of annuities and the boom of private class action litigation challenging annuity sales. 2. Companies must take appropriate steps to ensure that their compliance commitment is both documented and implemented: a. Documentation of policies and expectations b. Appropriate training i. Policy features ii. iii. Individual assessments of customer s finances, tax exposure, cash flows, retirement needs, customer s investment objectives Documentation practices c. Mechanisms for monitoring employees and sales (or documented delegation of authority where appropriate) d. Review of sales for suitability analysis e. LIMRA/CAP f. Review of sales literature g. Exception reporting 3. Is refinement of prelitigation practices a good idea? D. Public Relations 1. Companies who are the targets of class action litigation can have their public reputations tarnished. 2. PR is an important component of successfully resolving class action suits a. Maintain good customer relations b. Deflect regulatory scrutiny c. Maintain positive investor relations E. Customer Relations 1. Companies must consider the impact of high-profile class action litigation on customer relations. These suits can: a. Discourage potential customers from purchasing products from company b. Encourage current customers to withdraw their assets from the company c. Cause customers to initiate complaints to the company or to complain about the company to regulatory bodies d. Cause customers to pursue litigation against the company or the insurance broker who sold them an annuity Annuity Class Action Litigation Trends and Strategies for Effective Class... v Robinson v 193

12 2. Customer complaints can be a boon to the plaintiffs lawyers, particularly if a complaint escalates and becomes the source of regulatory interest. F. Public Disclosure and Reporting Requirements 1. Defendant companies must assess whether they have an obligation to report or account for a potentially adverse judgment. 2. Accounting rules generally require the company to assess the following factors in determining how to account for these contingent events: a. The period in which the underlying cause (i.e., the cause for action) of the pending or threatened litigation or of the actual or possible claim or assessment occurred b. The degree of probability of an unfavorable outcome c. The ability to make a reasonable estimate of the amount of loss II. Strategic Litigation Considerations A. Document Preservation and Production 1. The Rules of Civil Procedure in all jurisdictions require litigants to search for and produce any documents requested by opposing counsel that are relevant to the litigation. In addition, the rules governing civil procedure require that parties preserve (i.e., avoid destroying) any documents that could be pertinent to the suit. This process of preservation and production can be extremely time-consuming and resource intensive. 2. Document preservation a. Litigants are legally obligated to preserve (and therefore not destroy, discard, alter, or make inaccessible) any and all documents that relate to the subject of the litigation. This duty to preserve typically arises when litigation becomes reasonably foreseeable, and the duty to collect and preserve remains throughout the litigation. b. Destruction or loss of potentially relevant documents (including electronic documents, such as s and computer files) could expose litigants to sanctions. c. Accordingly, litigants must take steps to collect and preserve all documents (including s) that may pertain to the litigation, including: i. Identifying custodians potentially relevant documents, communicating preservation obligation to these affected persons ; sending initial preservation notice to all employees; and following up with individual employees to ensure that all documents are preserved ii. iii. Developing a preservation plan with IT (and possibly outside IT vendors) in order to preserve and collect all electronic documents. Work with counsel to separately preserve all hard copy materials Maintaining adequate supervision, control, and documentation of preservation efforts, taking care to document all preservation efforts 3. Document production 194 v Life, Health, Disability and ERISA Claims Seminar v April 2009

13 a. Litigants are entitled to request (and receive) all nonprivileged documents that are relevant to the claim or defense of any party. b. Parties receiving document requests must search for documents where they are reasonably likely to be found and produce them to opposing counsel. c. Effective document production requires the following basic steps: i. Full document preservation ii. iii. 4. E-discovery Review of requests for production and preparation of a collection plan to identify the requested documents Review of documents collected for responsiveness (and potential privilege) and organization of documents for production to opposing counsel a. All of these document preservation and document production requirements apply to documents stored electronically (including s). b. As companies increasingly rely on electronic correspondence, the task of preserving, cataloging, and producing electronic documents can be extremely difficult, costly, and labor intensive. c. Federal Rules of Civil Procedure require litigants to meet and confer early in a lawsuit to develop plans to catalog and produce electronically stored data in any litigation, which places a burden on defendants in class action suits. 5. Strategic considerations a. The process of preserving, collecting, reviewing, and producing documents is very time-consuming and resource intensive. b. This burden, however, falls disproportionately on defendants in annuity class action suits because defendant-companies possess many documents that are potentially relevant to the suit (whereas the plaintiffs tend to have only a few documents). c. Accordingly, the plaintiffs will typically attempt to push the court to order early and extensive document discovery. This can place a financial burden on defendants, thus pressuring them to settle. In addition, the plaintiffs prefer early discovery in order to gain as much useful information as possible (again keeping in mind that defendants possess the bulk of the information pertinent to the suit). i. Plaintiffs can make early discovery requests in order to keep pressure on defendants. d. By contrast, defendants will want to delay discovery and keep the scope of discovery narrow, both to avoid the expense of a burdensome document production and to keep potentially damaging information away from the plaintiffs for as long as possible. i. Defendants can sometimes delay document production by filing early motions to dismiss. In some courts, this may support a stay of discovery. ii. Thereafter, defendants can attempt to encourage the court to phase discovery or to limit the scope of discovery. Annuity Class Action Litigation Trends and Strategies for Effective Class... v Robinson v 195

14 B. State versus Federal Jurisdiction; Class Action Fairness Act and Removal 1. Jurisdiction is the right, power, or authority to administer justice by reviewing and determining controversies. 2. In many instances, both state courts and federal courts are capable of exercising proper jurisdiction over a class action case. However, the plaintiffs and defendants frequently attempt to steer litigation into their court of choice. a. Plaintiffs may prefer to have class action suits litigated in state courts: i. Can choose to litigate in small, plaintiff-friendly courts ii. iii. iv. Smaller jury pools in plaintiff-friendly counties Depending on the jurisdiction, state court judges may be unaccustomed to handling large, complex, class actions Sometimes, states have peculiar procedural rules that can be advantageous to the plaintiffs b. Defendants, by contrast, may prefer to have cases litigated in federal courts: i. Uniform procedural rules across all federal courts ii. iii. iv. No need to litigate in small, plaintiff-friendly state courts Potentially more experienced judges to oversee complex, often technical cases Juries selected from broader geographical pool v. Federal courts have more resources than state courts vi. Easier to consolidate multiple lawsuits before one judge, sometimes in the most convenient of jurisdictions 3. Mechanisms of steering cases to either state or federal courts. a. Filing a case. Plaintiffs, because they initiate litigation, can initially select the forum for a class action suit. The plaintiffs choice of forum is accorded significant weight by courts, although this deference is diminished in the context of class action suits. Avritt v. Reliastar Life Ins. Co., 2007 WL (W.D. Wash. Feb. 27, 2007) (discussing choice-of-forum principles in context of class action on behalf of a class of California residents, mainly public school teachers, who purchased certain deferred retirement annuity policies). b. Removal. 28 U.S.C allows a defendant to remove a case filed in state court to federal court if, at the time of removal, the case could have been filed in federal court. Thus, removal requires an independent ground for subject matter jurisdiction such as diversity jurisdiction or federal question jurisdiction. c. Class Action Fairness Act, 28 U.S.C. 1332(d), 1453, & This act, passed in 2005, gives federal courts jurisdiction over class actions in which the amount in controversy exceeds $5 million, and in which any of the members of a class of plaintiffs is a citizen of a state different from any defendant, unless at least two-thirds or more of the members of all proposed plaintiff classes in the aggregate and the primary defendants are citizens of the state in which the action was originally filed, 28 U.S.C. 1332(d). This act was designed to reduce forum shopping by plaintiffs in friendly state courts by expanding federal diversity jurisdiction to class actions where there is 196 v Life, Health, Disability and ERISA Claims Seminar v April 2009

15 not complete diversity (as required under 28 U.S.C. 1332(a), whereby all plaintiffs are from states different from those of all defendants) giving federal jurisdiction over class actions against out-of-state defendants. Thus, this law expands the defendants ability to remove a class action to federal court. Accordingly, it is a powerful device that can be used by defendants to avoid litigating class action suits in state court. d. Private Securities Litigation Reform Act of 1995 ( PSLRA ), 15 U.S.C. 78u-4, was an effort by Congress to make it more difficult for plaintiffs to state a claim for violation of the federal securities laws. Securities Litigation Uniform Standards Act of 1998, 15 U.S.C. 77p, 78bb(f) ( SLUSA ), preempts certain class actions that alleged fraud under state law in connection with the purchase or sale of securities. Such state law claims cannot be filed in state or federal court. Together, these statutes serve as a mechanism for removing suits involving the sale of variable annuity products, which are treated as securities, to federal court. e. Remand. If a defendant removes a case to federal court, the plaintiffs can contest that removal in federal court through a motion to remand to state court. In the motion to remand, the plaintiffs can challenge whether the court has proper jurisdiction over the removed case. C. Governing Pleading Standards and Motions to Dismiss 1. Two competing standards for evaluating sufficiency of a complaint on a motion to dismiss: a. Rule 8(a): the plaintiff must provide a short and plain statement of the claim showing that the pleader is entitled to relief. This standard applies in annuity class actions unless a plaintiff is stating a claim for fraud. i. In order to satisfy the Rule 8 pleading standard, a plaintiff must demonstrate a plausible entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, (2007). Twombly repudiated the Conley v. Gibson standard, which had previously permitted dismissal only where the plaintiffs could prove no set of facts to warrant recovery. ii. This standard is easier for a plaintiff to satisfy than the heightened Rule 9 pleading standard. b. Rule 9(b): In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. i. Rule 9(b) applies to all claims sounding in fraud. This includes all claims for fraud, as well as all claims that are predicated upon fraudulent acts or intentionally misleading conduct. ii. This particularity requirement demands a higher degree of notice than that required for claims that do not sound in fraud. If the plaintiff states a claim for fraud, it must identify, with specificity, the who, what, where, when, and how of the alleged fraudulent misconduct. The particularity required by Rule 9(b) is intended to enable the defendant to respond specifically and quickly to the potentially damaging allegations. 2. Defendants have succeeded in getting fraud-based annuity class action suits dismissed pursuant to Rule 9(b). Annuity Class Action Litigation Trends and Strategies for Effective Class... v Robinson v 197

16 a. Bendzak v. Midland Naionall Life Ins. Co., 440 F. Supp. 2d 970 (S.D. Iowa 2006). Dismissed the plaintiffs RICO claim, alleging scheme to defraud seniors by selling them inappropriate annuities, because complaint did not identify dates or locations of communication that facilitated the alleged scheme to defraud amongst defendant corporation and its employees. b. Bacon v. American International Group, 415 F. Supp. 2d 1027 (N.D. Cal. 2006). The plaintiffs alleged that Washington Mutual defrauded and manipulated seniors into buying unsuitable deferred annuities. The defendants filed a motion to dismiss arguing that the complaint failed to satisfy Rule 9(b) because it did not identify any misrepresentations that were made, nor did it allege the role of each defendant in the supposed fraud. The court dismissed all counts that sounded in fraud under Rule 9(b). 3. Plaintiffs take several steps to avoid the strictures of Rule 9(b): a. Avoid pleading claims sounding in fraud, opting, for instance, to allege that defendants sold a defective product b. Find and allege particularized facts D. Rule 23 and Class Certification 1. Class certification is the process by which the court grants permission to an individual plaintiff (or a small group of plaintiffs) to sue on behalf of similarly situated individuals. The rules for class certification are governed by Federal Rule of Civil Procedure 23 or its state court analogues. Certain state court claims may also incorporate their own requirements for certification of a class. See, e.g., Mass. Gen. Laws ch. 93A, Frequently, the decision on whether to certify a class is heavily litigated, as this issue can be dispositive of an entire case and has a profound impact on defendants potential exposure. 3. In order to certify a class under Rule 23, a plaintiff must satisfy its burden to prove four threshold requirements of Rule 23(a), in addition to the particularized requirements of 23(b)(1), 23(b)(2), or 23(b)(3). Most commonly in an annuity class action, the plaintiffs ask a court to certify either a 23(b)(2) class (seeking injunctive or declaratory relief) or a 23(b)(3) class (seeking money damages) (the more common of the two). The Rule 23(a) requirements are as follows: a. Numerosity: the class is so numerous that joinder of all members is impractical. This requirement is usually not disputed in annuity class action cases. Courts generally require that relatively few class members exist to satisfy the numerosity requirement. Precise calculation of the number of class members is not required to satisfy numerosity requirement for class certification, and it is permissible for the court to rely on reasonable inferences drawn from available facts; numbers in excess of 40 have generally sufficed to satisfy this requirement. See In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 309 (3d Cir. 1998); In re Initial Pub. Offering Sec. Litig., 243 F.R.D. 79 (S.D.N.Y. 2007). b. Commonality: there are questions of law or fact common to the class. To establish commonality, a plaintiff must identify at least one question common to all members of the class. Quinn v. Nationwide Ins. Co., 281 Fed. Appx. 771, 776 (10th Cir. 2008) (affirming denial of class certification because the plaintiffs could not carry their burden of 198 v Life, Health, Disability and ERISA Claims Seminar v April 2009

17 identifying a common, certifiable factual issue in regard to their claims stemming from variable annuity contract sales); Garcia v. Johanns, 444 F.3d 625 (D.C. Cir. 2006). c. Typicality: claims of the representative parties are typical of the claims of the class. To be typical, a class representative s claim need not always involve the same facts or law as the remainder of the class, provided there is a common element of fact or law. In other words, factual variations in individual claims will not normally preclude class certification if the claim arises from same event or course of conduct as class claims, and gives rise to the same legal or remedial theory. See In re Prudential Ins. Co. 148 F.3d at 311 (discussing typicality requirement in context of insurance sales practices); Alpern v. UtiliCorp United, Inc., 84 F.3d 1525 (8th Cir. 1996). In an attempt to rebut a showing of typicality, defendants may argue that a plaintiff s claim arises out of unique facts or is subject to defenses that would preclude him from representing a class. d. Adequacy: the representative parties will fairly and adequately protect the interest of the class. Courts chiefly inquire whether the named plaintiffs interests are antagonistic to those of the class, and whether class counsel is competent. Yokoyama v. Midland Nat l Life Ins. Co., 243 F.R.D. 400, 407 (D. Haw. 2007) (finding adequacy of representation prong satisfied in evaluating class certification motion); Spann v. AOL Time Warner, Inc., 219 F.R.D. 307 (S.D.N.Y. 2003). 4. In addition, a plaintiff seeking to certify a 23(b)(3) class must establish two additional elements: a. Predominance: questions of law or fact common to class members must predominate over any questions affecting only individual members of the proposed class b. Superiority: class action must be superior to other available methods for fairly and efficiently adjudicating the controversy 5. In order to certify a 23(b)(2) class, the plaintiffs must also meet two requirements in addition to those set forth in Rule 23(a): a. That the defendant has acted or refused to act on grounds that apply generally to the class, and b. Final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; see Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311 (4th Cir. 2006) (refusing to apply Rule 23(b)(2) where relief sought was not predominantly injunctive or declaratory in nature) 6. Class certification requirements are designed to ensure that the case being managed by the court on behalf of a numerous and diverse class of plaintiffs is sufficiently homogenous and uniform to permit effective one-size-fits-all adjudication. a. Plaintiffs will seek to make their claims as uniform as possible in order to make class certification more likely, such as: i. Claims based on the design of a single annuity product purchased by a large number of people ii. Claims based on uniform treatment of customers purchasing an annuity (e.g., use of a certain sales script) Annuity Class Action Litigation Trends and Strategies for Effective Class... v Robinson v 199

18 iii. iv. Claims based on a single federal law or state law, as opposed to various state law causes of action with variable requirements across states Uniform failure to train sales representatives b. Plaintiff will generally eschew any cause of action that is inherently individualized, including: i. Allegations of point-of-sale misrepresentations ii. Allegations arising out of nonuniform contract provisions c. Conversely, defendants will argue that class certification is inappropriate because the claims of the proposed class are not sufficiently similar, attacking claims brought by the plaintiff to show: i. Individualized treatment of purchasers of annuities by defendants ii. iii. iv. Unique questions of fact pertaining to claims of the proposed class (for example, relating to producer training, point of sale representations, customer needs and objectives, annuity forms and features, and damages) Different state are laws applicable to different members of the class Damages require individualized and idiosyncratic calculations d. It is never too early to begin thinking about how these points will be addressed by each litigant when certification is contested (the filing of papers in addition to argument and/or an evidentiary hearing are possible depending on the court). E. Damages (punitive damages, RICO damages, fee recovery, state consumer protection, elderly abuse statutes) 1. Compensatory damages: paid to compensate the plaintiff class for loss, injury, or harm caused by defendants breach of duty. a. Compensatory damages are the most common award of damages in civil cases, including annuity class actions. b. The purpose of these damages is to restore the plaintiffs to their economic position but for the defendants actions. c. However, compensatory damages can be difficult to measure precisely, and parties will propose different ways to measure the loss suffered by the class in apportioning damages: i. Plaintiffs prefer a broad measure of damages in order to boost the payout to the class. For instance, the plaintiffs will often request that they be awarded what they could have earned in an alternative investment (frequently an alternative investment with a high rate of return). ii. Defendants adopt a more restricted view of compensatory damages, tending to reduce the total payout to the class. Defendants may prefer a measure of damages that simply restores the plaintiffs to their financial position before purchasing an annuity product. 2. Damage multipliers; some statutes permit the court to double or treble the amount of damages paid to the plaintiff class. Accordingly, the plaintiffs frequently seek to state a cause of 200 v Life, Health, Disability and ERISA Claims Seminar v April 2009

19 action under these statutes in order to increase the potential for obtaining a large jury award and to increase defendants exposure to liability (thus increasing the pressure on defendants to settle). a. Racketeering Influenced and Corrupt Organizations Act ( RICO ); provides for a potential doubling or trebling of a damage award. b. State consumer protection statutes (broad statutes designed to punish unfair, fraudulent, or deceptive trade practices): i. Example: Mass. Gen. Laws ch. 93A, 9 permits a court to double or treble damages if the court finds that the use or employment of the act or practice was a willful or knowing violation of the consumer protection statute. ii. iii. Example: Tex. Bus. & Com. Code Ann , et seq., prohibits false, misleading, or deceptive acts against consumers, forbids any breach of an express or implied warranty, and bars companies from engaging in an unconscionable action or course of action against consumers. Example: Vt. Stat. Ann. Tit. 9, 2451, et seq., is designed to complement the enforcement of federal statutes and decisions governing unfair methods of competition and unfair or deceptive acts or practices in order to protect the public, and to encourage fair and honest competition in commerce. c. State elderly abuse statutes (statutes designed to curb unfair, fraudulent, or deceptive trade practices targeted at senior citizens, who are viewed as particularly vulnerable): i. Example: Cal. Civ. Code 1780(b) and Cal. Bus. & Prof. Code provide that any violation of California s consumer protection statute or unfair practices statute against a senior citizen can be punished by an additional award against the defendant. 3. Punitive damages: damages not awarded in order to compensate the plaintiff, but in order to punish or deter the defendant and similar persons from pursuing a course of action. a. Typically, punitive damages are available only when jurors find that defendants conduct is willful or egregious. Thus, punitive damages tend to be a relatively rare remedy. b. Nonetheless, the threat of punitive damages can loom large, as awards for punitive damages can vastly exceed any award for compensatory (or actual) damages. c. As such, the plaintiffs frequently ask courts and juries to award punitive damages against defendants in an effort to boost the overall compensation to the class (and in order to pressure defendants into settling). 4. Attorneys fees and litigation costs a. RICO, many consumer protection statutes, and many elderly abuse statutes provide a fee shifting mechanism that requires defendants to pay for attorneys fees and litigation costs if the plaintiffs prove a violation of the statute. b. This is a tremendous hammer for the plaintiffs, as litigation costs for complex class actions can easily exceed millions of dollars. Accordingly, the plaintiffs can use the threat of fees to exert settlement pressure on defendants. Annuity Class Action Litigation Trends and Strategies for Effective Class... v Robinson v 201

20 F. To Fight or Settle? 1. The decision to fight or settle depends on an analysis of the relative costs and benefits of proceeding through litigation, as modified by the risk of success or failure. In rendering this analysis, attorneys and clients must weigh a number of factors, including those set forth below. 2. Potential costs of litigation: a. Potential damages b. Legal fees, including potential for paying opponent s fees c. Document production and retention d. Internal resources occupied during litigation e. Big Picture considerations, such as PR considerations, collateral regulatory impact 3. Potential costs of settlement: a. Settlement payment to class or cost of prophylactic measures i. Impact of take rates b. Legal fees c. Settlement approval process i. Confirmatory discovery ii. iii. Hearing/objections under Rule 23(e). Rule 23(e) requires the court to give notice to all class members who would be bound by a settlement and requires the court to find that the proposed settlement is fair, reasonable, and adequate before approving it. Any class member is permitted to object to the proposed settlement before a court approves the settlement. CAFA requirements, 28 U.S.C CAFA requires that courts closely scrutinize any coupon settlements as well as any attorneys fees that are awarded as part of a class settlement. In addition, CAFA directs courts to notify certain state and federal officials (i.e., attorneys general) to afford these officials the opportunity to weigh in on any class settlement before final approval. d. Class administration costs i. Notice ii. iii. Claims process (form requirement? adjudication panel?) Benefit administration e. Big Picture considerations, such as the message sent to the plaintiffs bar by resolving litigation 4. Likelihood of success (or failure) on merits: a. Chances of winning (or defeating) motion to dismiss, which is affected by governing pleading standard b. Chances of winning (or defeating) class certification c. Chances of winning (or defeating) a motion for summary judgment motion after discovery but before trial d. Chances of winning (or losing) trial 202 v Life, Health, Disability and ERISA Claims Seminar v April 2009

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